Imputation of Income in a Utah Divorce: Challenging a Commissioner’s Recommendation
By Jeff D. Rifleman, Rifleman Law & Mediation
A parent loses a job. The paycheck stops. Yet, at a divorce hearing, the other party asks the court to calculate support as though that paycheck is still arriving every month. For the parent facing that request, the consequences are immediate: a support obligation based on money the parent is no longer receiving.
Parents should support their children. They should also make reasonable efforts to support themselves. But those responsibilities do not eliminate the court’s obligation to examine the evidence. As a Saratoga Springs divorce lawyer, I believe the income figure used to calculate support should be supported by facts that explain what the parent earns or can reasonably earn.
That is where imputation of income in Utah divorce cases becomes important. It is also why an unsupported income determination should be challenged promptly and with a properly developed record.
What Does It Mean to Impute Income?
Imputation means attributing earning capacity to a parent beyond the income the parent actually receives. For example, the dispute may be whether a parent earning $3,000 per month can reasonably earn $6,000. The question is what supports that additional $3,000.
For child support, Utah Code § 81-6-203(6) permits imputation through a stipulation, default, or, in a contested case, a hearing and factual findings establishing its evidentiary basis. The amount must reflect employment potential and probable earnings, considering known employment opportunities, work history, qualifications, education, literacy, age, health, criminal history, other employment barriers, and community wages and job availability.
These disputes can materially affect child support calculations in Lehi and throughout Utah. A worksheet can be mathematically correct while resting on an unsupported income figure. The inputs deserve as much attention as the calculation.
Past Earnings Matter, but They Do Not Automatically Set Present Earning Capacity
Section 81-6-203(3)(a) requires consideration of historical and current earnings. A former salary belongs in the analysis. It does not end the analysis. In Pulham v. Kirsling, 2019 UT 18, ¶ 41, the Utah Supreme Court explained that imputation is discretionary and must rest on evidence of employment potential and probable earnings.
My practical question is straightforward: what evidence connects the person’s circumstances today to the income the other party wants the court to use?
Does Being Fired Prevent Income Imputation?
Being fired does not permanently protect someone from imputation. But termination does not automatically establish that the person chose to earn less, either.
In Busche v. Busche, 2012 UT App 16, ¶¶ 19–24, the Court of Appeals rejected an analysis that treated termination for cause as sufficient to establish voluntary underemployment. The court directed attention to the circumstances of the job loss, subsequent employment efforts, employment capacity, and earning potential. A person involuntarily terminated can later become voluntarily underemployed through inadequate efforts to obtain suitable work.
Timing can help explain the facts. A termination that occurred before divorce was filed may undermine an allegation that the parent deliberately reduced earnings because of the divorce. That is a factual argument, however, not an exemption from imputation. Preserve the termination records and document what happened afterward.
Read Busche Together With the Current Statute and Issertell
Busche applied an older statutory framework. A sound objection must account for that distinction. In Issertell v. Issertell, 2020 UT App 62, ¶¶ 11–18, the court explained that a separate finding of voluntary unemployment or underemployment is not required, although those circumstances remain relevant.
Issertell upheld the refusal to impute a husband’s former earnings where the evidence showed unsuccessful employment efforts and disabilities affecting his capacity to work. That decision illustrates why the person’s actual circumstances matter. An argument that the court never used the words “voluntarily unemployed” is weaker than an argument explaining why the evidence does not support the amount attributed to that particular parent.
The Court Must Explain the Income Figure It Selects
In Rayner v. Rayner, 2013 UT App 269, ¶¶ 8–14, the Court of Appeals addressed the need for findings concerning employment capacity and earning potential. Criticism of someone’s job search does not, by itself, explain the particular income figure selected. Qualifications, limitations, prevailing wages, and reasonably available work matter to that determination.
When reviewing a recommendation, I want to know whether the findings explain the result. Which evidence supports the proposed wage? What work can this person reasonably perform? What happened to the prior employment? Were documented limitations considered? Those questions help identify both missing findings and weaknesses in the underlying evidence.
Imputation Can Be Upheld When the Evidence Supports It
In Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶¶ 9–17, the court upheld imputation in an alimony determination based on vocational evidence, qualifications, and findings concerning inadequate employment efforts. The court did not require identification of a specific employer ready to hire the spouse.
That matters when preparing a challenge. The law does not require a guaranteed job offer before earning capacity can be considered. If a vocational opinion is unrealistic, explain why its assumptions do not fit the person’s qualifications, restrictions, or labor market. Simply disagreeing with the expert leaves the expert’s analysis unanswered. Although this article focuses on child support, these cases also illustrate the relevance of earning capacity to alimony disputes.
Challenging a Commissioner’s Income Recommendation Under Rules 101 and 108
Build the Record Before the Commissioner
Utah Rule of Civil Procedure 101 governs motion practice before commissioners. Under Rule 101(h), temporary financial motions and responses require verified financial declarations and income documentation unless current materials are already on file. Child support and custody motions and responses also require a child support worksheet. Rule 101(j) addresses exhibit foundations and summaries of voluminous records; Rule 101(k) establishes page limits and exclusions.
Preparation should begin before the hearing. Our discussion of temporary orders in Saratoga Springs divorce cases explains why early financial decisions deserve careful attention. Give your attorney organized records in time to prepare admissible evidence and meet the filing deadlines.
Do Not Wait for the Written Order to Check the Objection Deadline
Under Rule 108(a), a written objection is due within 14 days after a recommendation is made in open court or, if taken under advisement, within 14 days after service of the minute entry. The recommendation remains operative until modified. Objecting does not suspend payment obligations.
Identify the Error, the Supporting Record, and the Requested Correction
Rule 108(b) requires particularized objections identifying the challenged findings, conclusions, or recommendation and the relief sought; supporting memoranda follow Rule 7. Under Rule 108(e), the judge makes independent findings and conclusions. Rule 108(c)(3)(B) provides a hearing upon request on genuine material factual disputes involving noncustody domestic issues; the judge may require testimony or proffers. Evidence not presented to the commissioner is generally excluded unless a substantial subsequent change permits consideration of new evidence under Rule 108(c).
A useful objection identifies the exact income figure, cites the relevant declaration paragraphs and exhibits, explains the legal defect, and requests a supported replacement calculation. Where the hearing record matters, identify the relevant transcript pages or recording timestamps accurately. Request the appropriate hearing expressly.
Rule 101(p) addresses preparation of the proposed order and directs substantive objections to Rule 108. Correcting an order that inaccurately records the ruling is different from challenging the ruling itself. Do not assume an objection to the proposed wording preserves a substantive income objection.
Ward v. McGarry Shows Why Independent Findings Matter
In Ward v. McGarry, 2021 UT App 51, ¶¶ 7–12, the Court of Appeals reversed a child support determination following a commissioner’s recommendation because the district court had not properly received evidence and made independent findings. The opinion references the then-current Rule 108(f); the independent-findings provision is now Rule 108(e).
The later decision is also instructive. Following a trial on remand, Ward v. McGarry, 2024 UT App 169, ¶¶ 31–34, upheld the resulting imputation, which was supported by evidence and findings and included income the parent agreed to have attributed to him. A successful procedural challenge does not guarantee a lower award. The evidence must support the result you request.
What to Do If You Are Facing Income Imputation
Keep a Detailed Job-Search Journal
Record each employer, position, application date, advertised compensation, qualifications, interview, follow-up, and outcome. Save the actual job posting, application confirmation, recruiter correspondence, and rejection notice. Document why an opportunity was unsuitable rather than merely labeling it that way.
Make genuine, continuing efforts to obtain appropriate work. A journal is useful because it records those efforts; it cannot substitute for them. If an offer is contingent, preserve the condition and the employer’s explanation if the position never materializes. If you reject an offer, discuss the reasons with your attorney and preserve the relevant facts.
If You Are Self-Employed, Separate Business and Personal Expenditures
Under § 81-6-203(4), business income is calculated from receipts less necessary operating expenses; the result may differ from taxable income. An income dispute may concern this actual-income calculation rather than imputation.
Maintain separate accounts and reliable bookkeeping. Keep invoices, receipts, bank statements, profit-and-loss reports, payroll records, ownership documents, and distribution records. For vehicles, phones, travel, meals, and other mixed-use expenses, document the business purpose and personal allocation. Track owner draws, reimbursements, loans, and transfers so the same dollars can be traced without confusion or double counting.
If your business pays a personal bill, identify it honestly. If an expenditure keeps the business operating, preserve evidence explaining why. A truck, equipment purchase, or payment to a family member deserves more explanation than a category in accounting software. Discuss significant disputed items with your accountant and attorney before the hearing.
Explain the Change in Earnings With Documents
Preserve termination letters, severance agreements, pay records, unemployment records, tax returns, and employer communications. For a business downturn, gather canceled contracts, reduced orders, collection problems, and comparable monthly results. Distinguish an actual decline from ordinary seasonal fluctuations.
If health affects your ability to work, discuss appropriate medical support for the specific restrictions with counsel. If childcare, necessary training, or a child’s unusual needs limit employment, document the costs, schedule, and duration. Ask whether the statutory restrictions on imputation in § 81-6-203(6)(e) apply to your circumstances.
Keep Your Financial Declaration Accurate and Current
Review your declaration against the supporting records. Explain irregular income and identify estimates. Tell your attorney promptly about changes in employment, compensation, or business operations. Our guide to the Utah Financial Declaration and Rule 26.1 discusses how organized financial disclosure helps prepare the case.
I would rather receive a clear explanation of an unfavorable fact early than discover it for the first time during opposing counsel’s argument. Credibility is easier to preserve than repair.
Get Advice Before an Unsupported Income Figure Becomes Your Support Obligation
If you are facing income imputation, bring the motion, declarations, financial records, proposed calculation, and any recommendation already made to your consultation. If a hearing has occurred, identify its date immediately so the objection deadline can be evaluated. If the issue instead concerns changing an existing final order, obtain advice about the appropriate child support and divorce modification process.
At Rifleman Law & Mediation, we help clients address disputed earnings and support issues through careful preparation and focused advocacy. Whether you need a Lehi divorce attorney or representation in Saratoga Springs and surrounding Utah communities, the objective is a support determination grounded in the evidence and the law.
Call 801-510-0503 to schedule a consultation about income imputation, child support, or challenging a commissioner’s recommendation.
